Sales Provides Hill Testimony on National Security Leaks

On July 11 Professor Nathan Sales testified before the House Judiciary Committee Crime, Terrorism, and Homeland Security Subcommittee on the topic "National Security Leaks and the Law."

The hearing was held in response to New York Times stories that relied on leaks of sensitive national security information. Panelists discussed whether legislation allowing journalists to be prosecuted for the disclosure of such information was needed, as well as the need for recognition of First Amendment protections for freedom of the press.

Witnesses appearing with Sales were Kenneth Wainstein, partner at Cadwalader, Wickersham & Taft LLP; retired Army Col. Ken Allard; and Steve Vladeck, Professor of Law at the American University College of Law. 

Sales summarized his testimony as follows:

The government has a number of legal tools available to combat unauthorized leaks of highly classified information. Federal courts have held that the rarely used Espionage Act of 1917– the leading law on unauthorized access to classified information – applies to government employees who leak to the press, not just those who spy for foreign governments. In addition, intelligence officials routinely sign employment contracts pledging that they will not reveal any classified information, and that they will submit any writings to the government for pre-publication review. Federal courts, including the Supreme Court, agree that these arrangements are enforceable. At the same time, key terms in the Espionage Act are notoriously vague, and Congress should act to provide greater clarity, either by tweaking the existing statutory language or by enacting an entirely new law that is specifically crafted to deal with the problem of leaks. Finally, no statute requires the Justice Department to appoint a special prosecutor to investigate leaks by senior administration officials, but DOJ regulations provide for such a step and it has been done in the past.

Stressing the importance of protecting national security information, Sales said, "If it leaks, we can't wiretap Osama bin Laden. If it leaks, sources get caught, incriminated and killed."